California Appellate Court Provides Relief To Defendants By Reigning In Misapplication Of Punitive Damages

• Published date: 26 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Harris Beach
• Author: Mr Abbie Eliasberg Fuchs, Daniel R. Strecker and Marcus Tubin

Mass tort defendants frequently defend lawsuits in venues like Los Angeles County, California, which are favored by plaintiff firms due to their plaintiff-favorable law and propensity for large verdicts. In a recent decision clarifying the California punitive damages standard, the intermediate appellate court for Los Angeles County has provided relief to mass tort defendants, especially those whose products contain only trace amounts of an allegedly harmful substance. See McNeal v. Whittaker, Clark & Daniels, Inc., No. B313472, 2022 Cal. App. LEXIS 587, at *54 (Ct. App. July 5, 2022).

It is a maxim of toxicology and medical causation that "the dose makes the poison." However, California trial courts, relying on law developed primarily to address asbestos litigation, sometimes adopt "no safe level" theories espoused by plaintiff counsel and their experts. Building on these theories, the courts adopt plaintiff arguments that knowledge of the mere presence of an allegedly harmful substance in a defendant's product, no matter how small (e.g., trace benzene in a petroleum-based solvent) is sufficient to create an issue of fact that defendant willfully disregarded consumer safety and therefore can be liable for punitive damages.

Related, California trial courts occasionally hold that even though there is no scientific consensus that a given substance causes a disease, punitive damages can be imposed. In both of the above circumstances, courts conflate the standards for negligence'conduct the jury determines is unreasonable'and punitive damages, which requires "conduct having the character of outrage frequently associated with crime," and proof by clear and convincing evidence. Johnson & Johnson Talcum Powder Cases, 37 Cal. App. 5th 292, 335 (2019) (a/k/a Echeverria). Such rulings disregard California precedent. For example, in Echeverria, the court held that punitive damages could not be imposed on a talc product manufacturer where scientific consensus had not yet drawn a causal relationship between talc products and the alleged disease.

In McNeal, the Second Appellate District, which hears appeals from Los Angeles County, confirmed and clarified that holdings like these are erroneous. Defendant in McNeal supplied talc in talc products used until 1980 by plaintiff, who later developed mesothelioma. By 1972, defendant knew its talc could contain asbestos, and that asbestos is capable of causing illness. Defendant also knew its talc could contain asbestos. In...